Politics

Changes to Section 35 are being reviewed by lawmakers. Here’s what you should know.

“Section 35 is meant to be a very limited application.”

By Dialynn Dwyer

December 1, 2021

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Massachusetts ended the practice in 2016 of sending women to correctional facilities for addiction treatment when they are civilly committed.

Now, an effort is underway to do the same for men who are involuntarily committed under the state’s Section 35 law.

The push comes amid the debate over how to best address the ongoing humanitarian crisis at Massachusetts Avenue and Melnea Cass Boulevard in Boston, which has emerged as the epicenter of the overlapping crises of addiction, homelessness, and mental health in the region.

The COVID-19 pandemic has only exacerbated the situation in the area known as “Mass. and Cass.” Starting in 2020, Boston saw a surge in the number of individuals arriving on the stretch of city blocks surrounding Mass. and Cass, where a clustering of shelters and recovery services worked to stay open and adapt during the pandemic.

By late summer 2021, an encampment in the area had swelled to hundreds of tents.

State, county, and local officials have been scrambling to address the worsening crisis on the ground in anticipation of the arrival of freezing temperatures. Suffolk County Sheriff Steve Tompkins is forging ahead with a plan to open a treatment facility on his South Bay correctional campus where people arrested in the area of Mass. and Cass could be directed by the courts for treatment. For three weeks, a special court session was established at the Suffolk County jail where individuals arrested on open warrants in the area were processed, but the effort was terminated after nine days of operation due to “low case volume.”

In another effort to address the crisis, on Nov. 2, Boston officials began removing tents around Mass. and Cass, implementing procedures mandated in an executive order issued by then-Acting Mayor Kim Janey in October. The protocols targeted the removal of the encampments, with Janey and officials stressing that the goal was to get people struggling with homelessness, addiction, and mental health connected with resources and services.

The ACLU of Massachusetts is suing the city over the protocols, but so far the organization has been denied a temporary restraining order to halt the removals. However, during her first week in office, Mayor Michelle Wu announced the city was “pausing” removals of the tents while the matter is weighed by the courts, and she said her administration will “not necessarily” resume the encampment protocols, even if a judge rules in the city’s favor.

Amid the flurry of activity by the city and the county to address Mass. and Cass, advocates and lawmakers have repeatedly raised concerns in recent months about the state’s practice of allowing courts to send men who are civilly committed under Section 35 to receive their mandated addiction treatment in a correctional facility.

So, what is Section 35?

It is a state law that allows for people to be involuntarily committed to treatment for drug or alcohol use.

But according to Jessie Rossman, a staff attorney at the ACLU of Massachusetts, the statute is “pretty narrow” in terms of when it is meant to be applied.

“The standard is that folks can only be sectioned if a court determines that there’s a likelihood of serious harm as a result of the person’s alcohol or substance use disorder,” she said. “So the mere fact that somebody has a substance use disorder or an alcohol use disorder, that is not appropriate for sectioning. What the court needs to find is that there is that likelihood of serious harm.”

To satisfy the threshold that there is a likelihood of serious harm, it must be clear there is a substantial risk of physical harm to the individual themselves, such as evidence of threats of suicide or bodily harm, Rossman said. Or there must be a substantial risk of physical harm to another person, rising to the level of violent or homicidal behavior to anyone else.

A third avenue for meeting the level of “likelihood of serious harm” is if it can be demonstrated that there’s substantial risk of physical injury to the person based on evidence that their judgment is so affected that they can’t protect themselves in the community or that the community isn’t able to provide protection to them, she said.

“Section 35 is meant to be a very limited application,” Rossman said. “It is taking away somebody’s liberties when they have not been accused or convicted of a crime. And as a result, we really need to have a high standard that is demonstrated by the government before you can take away somebody’s liberty under the statute. And so any suggestion that Section 35 should be used under any kind of circumstances that would divert from that would be deeply troubling.”

Simply showing that an individual is struggling with addiction — even if they are at risk for an overdose — doesn’t satisfy the standard of substantial risk of harm to necessitate involuntary commitment, she said.

And only “qualified persons” can petition a local court to have someone committed under Section 35. Those qualified to file a written petition or affidavit for an order of commitment include a police officer, physician, spouse, blood relative, guardian, or court official.

While the state has a set of statutes that directly addresses involuntary commitments and mental health issues, Section 35 is the only mechanism for civil commitment for addiction.

Initially under the law, both men and women could be sent to carceral settings for treatment if a bed in a Department of Mental Health or Department of Public Health facility wasn’t available.

But a lawsuit brought against the state by the ACLU, Prisoner’s Legal Services, and the Center for Public Representation challenged the practice. In the midst of the litigation, lawmakers changed the legislation in 2016 to prohibit sending women to carceral settings.

Currently, Prisoner’s Legal Services is challenging the remaining practice of sending men to treatment facilities in jails or correctional facilities.

Rossman said there is a “real lack of evidence” that involuntary treatment actually helps people, and she and others are concerned that the practice only exacerbates the stigma associated with substance use or alcohol use disorder.

The state created a Section 35 Commission in 2018, which was tasked with studying the “efficacy” of the statute. The Department of Public Health provided the commission with data collected on involuntary treatments, comparing overdose deaths for people who had been civilly committed to those who hadn’t.

The department found that individuals who had a history with involuntary treatment were actually 1.4 times as likely to die from an opioid-related overdose compared to those with no history of civil commitment for treatment.

“In one moment telling people you want to send them to a place where they can get treatment for their addiction and then the next having them arrive at a jail or a prision, that only increases stigma,” Rossman said. “It creates additional burdens to recovery. I know that often family members, who are one of the folks who can petition family members, when they make the incredibly difficult decision, … only to discover that in fact they’ve been sent to a jail or a prison to get their treatment, can be shocking, understandably.”

State Rep. Ruth Balser, whose district includes Newton and who also serves on the Legislature’s Section 35 Commission, is among the elected officials pushing for leaders to prohibit civil commitments for addiction treatment for men in correctional facilities.

She and State Sen. Cindy Friedman have filed joint legislation (H 2066/S 1285) that would amend the state’s Section 35 law so that men who are civilly committed under the statute would receive treatment at a facility that is licensed or approved by the Department of Public Health or Department of Mental Health that is not in a jail or correctional facility. It would also mandate that approved facilities be “geographically distributed” throughout the state in order to provide access to treatment across Massachusetts.

“The point of this legislation is to make our statutes in Massachusetts match up with the science,” Balser said during a hearing for the legislation in early November. “The science would tell us a very important and simple fact, which is that addiction is an illness and not a crime. … Massachusetts is the only state in the nation whose statutes allow those civilly committed individuals to be sent to a facility run by the criminal justice system. We are the only state in the nation whose statutes say that.”

Balser and Friedman aren’t the only lawmakers pushing for changes to Section 35.

State Sen. Nick Collins has put forward a separate bill (S. 1265), which would amend Section 35 to allow an on-call justice to temporarily commit a person with a “grave likelihood of serious harm” because of their substance use disorder when a court is closed, with a hearing to be held the next business day. The proposed legislation would also allow the Suffolk County sheriff to enter into agreements with the Department of Public Health Section 35 program providers at the sheriff’s correctional facilities.

Collins said in a statement that his bill “provides a creative way to leverage public assets to put on-line badly needed treatment beds that don’t exist in Suffolk County.”

“It does so using a civil approach to solve the crisis at Mass Ave and Melnea Cass Boulevard,” he said.

Business leaders and elected officials, including Tompkins and Boston City Councilors Frank Baker and Ed Flynn, expressed support during the hearing for the proposal from Collins.

But a number of doctors, social workers, advocates, and individuals working in the recovery community spoke during the hearing, highlighting the concerns they have about the negative impacts of providing addiction treatment in a carceral setting to individuals who have been involuntarily committed. They urged the committee to pursue the legislation introduced by Balser and Friedman.

Tyshawn Perryman, a recovery coach at Boston Medical Center, spoke about his experience petitioning for a Section 35 commitment for his father after his issues with mental health and substance use “grew out of control.”

Perryman said he and family faced the stigma of sending a loved one “into captivity against their will.”

It was the hardest thing the recovery coach said he’s ever had to do.

“In the courtroom, I remember looking at him and seeing him experience shame, bewilderment, and nothingness at the same time, knowing involuntary commitment to prison was not the answer,” Perryman said. “He was supposed to be there for treatment. But instead my father, a 65-year-old Army veteran, had to live in a cell under the supervision of prison guards. He even had to spend a large piece of his Social Security check to make expensive phone calls. He was not treated like a patient. He was treated like he was guilty of a crime.”

Perryman said the treatment his father experienced didn’t help him, and he relapsed after two days.

“Commitment in a prison or a jail is psychologically counterintuitive for Black men, who are already victimized by mass incarceration and do not experience a feeling of rehabilitation in a prison environment,” he said. “Prisons and jails are not the place we are sending patients with any other disease besides addiction. So why do we keep doing it?”

Balser said during the hearing held by the committee on Mental Health, Substance Use and Recovery that “no one” is disputing the importance of Section 35.

But as the statute stands, prohibiting women from being involuntarily committed for treatment in a jail but allowing the practice for men, Balser said the state has introduced gender discrimiantion into the law.

“It makes absolutely no sense for men who are suffering from a serious addiction to be treated in a correctional facility while we recognize that women shouldn’t be,” she said. “So this bill would prohibit that discrimination against men … When someone is at imminent risk of harm because of a mental illness, we can civilly commit them. But to a hospital. We send people like that to a psychiatric hospital. The laws about addiction should be the same, which is that if someone is that bad shape that we need to commit them to involuntary treatment, then it should be in a health care facility.”

The state legislator, who is also a clinical psychologist, said she’s heard from many family members and individuals who have been sectioned that the mechanism can “be a lifesaver.”

“We’re just saying that we need to do it right,” she said. “We need to build a system of care.”